Appealed From No. A94-3979. State Agency, Workers' Compensation Appeal Board.
Before: Honorable James Gardner Colins, President Judge, Honorable Rochelle S. Friedman, Judge, Honorable Samuel L. Rodgers, Senior Judge. Opinion BY Senior Judge Rodgers.
The opinion of the court was delivered by: Rodgers
Veronica Ricks (Claimant) and Parkway Corporation (Employer) both petition for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed in part and reversed in part the order of a Workers' Compensation Judge (WCJ). The Board affirmed the WCJ's grant of benefits to Claimant, but reversed the WCJ's determination of an unreasonable contest and the award of a penalty against Employer. The petitions for review were consolidated by order of this Court, dated June 6, 1997. We affirm in part and reverse in part.
Claimant was employed as a cashier for Employer, collecting tickets and money at a parking garage. On June 12, 1992, Claimant injured her left knee when she hit it against a corner of a metal drawer. Claimant's manager witnessed the incident. Claimant rested and iced her knee over the weekend, but upon returning to work on Monday, Claimant notified her supervisor of the severe pain she was experiencing. On Tuesday, June 16, 1992, Claimant's supervisor requested that she fill out an accident report and escorted Claimant to Jefferson Hospital's Workers' Compensation Clinic for treatment.
Claimant remained out of work until July 1, 1992, when she returned full-time. However, due to increased pain and swelling, on July 8, 1992, Claimant reduced her hours, working part-time until August 31, 1992. Then on September 1, 1992, Claimant was again off work on the advice of her treating physician.
On September 14, 1992, Claimant filed a claim petition, alleging that she was disabled as a result of her work injury. Claimant also filed a penalty petition, alleging that a Notice of Compensation Denial, dated July 30, 1992, was filed by Employer after the twenty-one day limit required by Section 406.1 of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by Section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S. § 717.1. The Notice of Denial only stated that Employer had been unable to complete an investigation. On October 7, 1992, Employer filed answers to Claimant's petitions, denying all the allegations.
At hearings before the WCJ, Claimant testified on her own behalf and presented the deposition testimony of Corey K. Ruth, M.D., one of Claimant's treating physicians. Claimant testified that during the pendency of the case no salary, benefits or medical bills were paid by Employer, except for any hours that Claimant actually worked. Claimant related that Dr. Ruth performed surgery on her knee on November 12, 1992. Claimant acknowledged that Dr. Ruth released her to work without restriction on April 1, 1993, although she still suffered residual pain and swelling. *fn1 She further testified that after receiving Dr. Ruth's return to work order she went to Employer's personnel office, but was informed that she was no longer an employee. Then Claimant sought a job with another employer, securing a position with Exxon Corporation on June 1, 1993, earning less than her pre-injury wage.
Employer presented the deposition testimony of Mario Joseph Arena, M.D., who initially treated Claimant as a result of a referral from Jefferson Hospital's Workers' Compensation Clinic, and the deposition testimony of Murray R. Glickman, M.D., who performed an independent medical evaluation (IME) on August 20, 1992. *fn2
The WCJ formulated the following findings of fact concerning the medical testimony:
4. h. On July 14, 1992, Claimant came under the care of Dr. Corey K. Ruth, an orthopedic surgeon. Dr. Ruth diagnosed Claimant as suffering from a knee contusion, lateral menisus [sic] tear, internal derangement and strain which was caused by the June 12, 1992 incident;
i. Claimant was also examined by Dr. Mario Joseph Arena, an orthopedic surgeon on June 22, 1992 and he did not allow Claimant to return to work at that time. Dr. Arena's diagnosis of Claimant was a ...